Legal Research
Cases
Cairns v SAE Group Pty Ltd

Cairns v SAE Group Pty Ltd

Case [2024] NSWPICMP 659 17 September 2024

Type to search within this case.

DETERMINATION OF APPEAL PANEL
CITATION:	Cairns v SAE Group Pty Ltd [2024] NSWPICMP 659
APPELLANT:	Damian Cairns
RESPONDENT:	SAE Group Pty Ltd
APPEAL PANEL
MEMBER:	Catherine McDonald
MEDICAL ASSESSOR:	Douglas Andrews
MEDICAL ASSESSOR:	Michael Hong
DATE OF DECISION:	17 September 2024
CATCHWORDS:	WORKERS COMPENSATION - Workplace Injury Management and Workers Compensation Act 1998; assessment of psychological injury; application to rely on statement from worker’s wife describing greater impairment than worker’s history to Medical Assessor; no previous statement obtained; terms of referral required apportionment between primary and secondary psychological injuries; Petrovic v BC Serv No 14 Pty Limited, Lukacevic v Coates Hire Operations Pty Limited, Zoric v Secretary, Department of Education, and State of New South Wales v Ali considered; Held – Medical Appeal Panel declined to admit the worker’s wife’s statement; Medical Assessment Certificate confirmed.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 April 2024 Damian Cairns lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Medical Assessor Nicholas Glozier, who issued a Medical Assessment Certificate (MAC) on 27 March 2024.
Mr Cairns relies on the grounds of appeal under s 327(3)(b), (c) and (d) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
·        availability of additional relevant information (being additional information that was not available to, and that could not reasonably have been obtained by, the appellant before the medical assessment appealed against);
·        the assessment was made on the basis of incorrect criteria, and
·        the MAC contains a demonstrable error.
The President’s delegate was satisfied that, on the face of the application, at least one ground of appeal was made out - that the Medical Assessor made a demonstrable error in the application of paragraph 1.32 of the Guidelines. We conducted a review of the original medical assessment, limited to the grounds of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 – Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4^th ed 1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5^th ed (AMA 5).

RELEVANT FACTUAL BACKGROUND

Mr Cairns pleaded in his Application to Resolve a Dispute that he suffered a psychological injury on 25 October 2017 when his right arm was lacerated on exposed metal in the course of his employment with SAE Group Pty Limited (SAE). On 8 February 2024 a Member of the Personal Injury Commission (Commission) made orders by consent which led to referral to the Medical Assessor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cairns v SAE Group Pty Ltd

Details

AGLC: Cairns v SAE Group Pty Ltd [2024] NSWPICMP 659
Case: [2024] NSWPICMP 659
Decision Date: 17 September 2024

CaseChat Overview and Summary

The case of Cairns v SAE Group Pty Ltd involved a dispute between the worker and the employer over the assessment of a psychological injury under the Workplace Injury Management and Workers Compensation Act 1998. The worker, Cairns, sought to rely on a statement made by his wife, which described a greater level of impairment than documented in his medical history provided to the Medical Assessor. The employer, SAE Group Pty Ltd, opposed the reliance on the wife’s statement on the grounds that it had not been obtained in accordance with the referral terms. The case was heard by the Medical Appeal Panel.

The key legal issues for the court were whether the wife's statement could be admitted as evidence in the absence of a previous statement from her, and whether the referral terms required an apportionment between primary and secondary psychological injuries. The court considered the relevant case law, including Petrovic v BC Serv No 14 Pty Limited, Lukacevic v Coates Hire Operations Pty Limited, Zoric v Secretary, Department of Education, and State of New South Wales v Ali, to determine the admissibility of the wife's statement and the proper approach to assessing psychological injuries.

The court found that the terms of the referral required an apportionment between primary and secondary psychological injuries, and therefore, the wife’s statement could not be relied upon as it had not been obtained as part of the assessment process. The court held that the Medical Assessment Certificate, which confirmed the employer's position, was appropriate, and the wife’s statement was declined as evidence. The Panel concluded that the Medical Assessment Certificate was consistent with the applicable legislative provisions and case law.

No further orders were made beyond the confirmation of the Medical Assessment Certificate.

Orders